Punjab-Haryana High Court
Salim vs Sajid And Others on 25 September, 2012
Bench: Jasbir Singh, Rameshwar Singh Malik
CRM A 939-MA of 2011(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM A 939-MA of 2011(O&M)
Date of decision: 25.09.2012
Salim
.....Applicant
versus
Sajid and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Rameshwar Singh Malik
Present: Mr.Pawan Kumar Aryan, Advocate for the applicant
Jasbir Singh, J. (Oral)
This application has been filed under Section 378(4) Cr.P.C. Seeking leave to file an appeal against judgment of acquittal dated 6.7.2011. Against respondents No.1 to 3, an FIR was registered on 9.5.2009 for commission of an offence under Sections 363, 366, 376, 120B IPC. It was an allegation against them that they, on 7.5.2009, had abducted Shabnam daughter of the complainant- Salim from his house.
The process of law was initiated on an application (Ex.P10) moved by the complainant before PW12 Nirmal Singh, SHO Police Station Buris.
The Trial Judge has noted the following facts from the above application:-
"On 7th of May, 2009 all the family members went to sleep at about 10.00 P.M. after taking dinner. His three daughters namely Shabnam aged about 19 years, the prosecutrix aged about 16 CRM A 939-MA of 2011(O&M) 2 years and Imrana aged about 14 years slept in a separate room. At about 1.30 A.M. on intervening night of 7th/ 8th of May, 2009 his daughter Imrana called him and told him that his daughter (prosecutrix) had been kidnapped by Rashida, Sajid and Amjad. He immediately raised noise. He took his brothers and neighbours in search of his daughter but she could not be found. It was alleged that his daughter (prosecutrix) had been taken away by Rashida, Sajid and Amjad with a promise that she would be got married to Sajid. It was further stated that he had inquired about the matter and had found that one Salim was also involved in the incident. When the prosecutrix could not be found, the complaint was submitted (on 9th of May, 2009). On the basis of the complaint FIR Ex.P11 was registered."
The prosecutrix was recovered on 30.5.2009. The investigating officer got her medico legally examined and thereafter, her statement under Section 164 Cr.P.C. was also got recorded. The investigating officer recorded statements of the witnesses, went to the spot, prepared rough site plan (Ex.P18) of the place of occurrence. On completion of investigation, final report was put in Court. Copies of the documents were supplied to the accused as per norms. Case was committed to the competent Court for trial. The accused were charged sheeted on 10.10.2009 to which they pleaded not guilty and claimed trial. The prosecution produced 13 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of prosecution's evidence, separate statements of all the accused were recorded under Section 313 Cr.P.C. Incriminating material was put to them which they denied, claimed innocence and false implication. CRM A 939-MA of 2011(O&M) 3 Respondent No.1 took up a stand that he and the prosecutrix were in love with each other and they had solemnized marriage on 2.5.2009 at Yamuna Nagar. The parents of the prosecutrix were not happy with the marriage on account of which a false case has been got registered. It is further stated that the accused and the prosecutrix also came to this Court to get protection. The prosecutrix had made statement against him under pressure of her parents. The accused also led evidence in defence.
The trial Judge on appraisal of evidence found case of the prosecution doubtful and accordingly, the accused were acquitted. When giving benefit of acquittal to the accused, the Trial Judge has noted as under:-
"After hearing learned counsel for the parties and going through the record of the case, this court has arrived at the conclusion that the prosecution has not been able to prove its case against the accused. This court has no hesitation in holding that the present case is nothing but an abuse of process of law. In the opinion of this court, the complainant and the prosecutrix deserve to be punished for falsely implicating certain persons. The alleged incident is of the intervening night of 7th / 8th of May, 2009. The incident seems to unbelievable at the very first instance. It would be most improbable that a girl would be kidnapped from a room of the house. The first complaint was moved on 9th of May, 2009. This conduct is also very unnatural. If some body's young daughter is kidnapped from his house and in fact from her bed room in the dead of the night, the parents would not wait for two days to get the FIR registered. A hue and cry would be raised not only in that house but in the entire area. CRM A 939-MA of 2011(O&M) 4 Further, in the complaint Ex.P10, the complaint named Rashida, Sajid and Amjad. The prosecutrix was recovered on 30th of May 2009. She was with the accused Sajid. Her statement under section 161 Cr.P.C. was recorded and her statement under section 164 Cr.P.C. was also recorded. In the statement recorded under Section 164 Cr.P.C. Ex.21, she stated that Sajid had taken her. She did not depose as to whether she had been taken from the room or from some other place. She stated tha earlier she was taken to Agra and they stayed in a rented accommodation. Sajid then rang up his maternal uncle who brought a car. Another person by the name of Mamudeen was also with him. Sajid and the prosecutrix were taken to some unknown place where she was left with Sajid. Akram, who was a resident of the village of the prosecutrix saw her in that village with Sajid. The person in whose house the prosecutrix and Sajid were stayed then rang up Mamudeen and told him that the prosecutrix and Sajid had been spotted by a resident of the village of the prosecutrix and that they should be taken away. On that very night, the maternal uncle of Sajid and Mamudeen came on driver driven car and took them to the house of their mother-in-law which was at a distance of about one hour drive from that village. The mother-in-law also came to know that the prosecutrix had eloped with Sajid and therefore, she turned them out in the morning. Then they went to Chandigarh in the same car on 24th of May, 2009. There they went to an advocate. Court marriage papers were prepared. They had gone to the advocate on Friday and he had called them CRM A 939-MA of 2011(O&M) 5 on Monday. They appeared before the Hon'ble Judge on Monday. The case was adjourned and they were told to come on 2nd of June 2009. They came back from Chandigarh and took a room in Buria where they stayed for four days. Then they were caught by the police. She stated that she had not stayed with Sajid with her own sweet will and Sajid had kidnapped her. Interestingly, there were no allegations of rape against other accused except Sajid. In her statement recorded under Section 161 Cr.P.C. the version was totally different. Further, while appearing as a witness the version again changed. Here she stated that she had been kidnapped by two persons from her room and those persons were Mamudeen, Mehboob, Ayub and Sajid. It would be relevant to mention that these persons had not been named either in the complaint Ex.P10 or in the statement under Section 164 Cr.P.C. She further stated that for 12 days she stayed at Agra in a hotel. Here she raised allegations of rape against all the accused. Right from beginning the allegations of rape were against Sajid and suddenly they were raised against all the accused. Both witnesses i.e. the prosecutrix and her father faulted in the cross examination. She was confronted with her statement under section 164 Cr.P.C. and statement Ex.DA. She admitted that when she was taken from one place to other and when she had gone to the Hon'ble High Court, there were many persons present. She chose not to protest in front of the advocate and before the Hon'ble High Court when she appeared. She admitted that one Molvi had got a case registered against her CRM A 939-MA of 2011(O&M) 6 family members as well as one Pawan Kumar Arya Advocate regarding snatching of the register of Molvi in which he had entered about the marriage of the prosecutrix with Sajid. The case in hand is a classic case where the prosecutrix eloped with Sajid, filed a protection petition in the Hon'ble High Court after solemnizing marriage and the when she was recovered, the case was foisted upon the accused. A perusal of the complaint Ex.P10, the statement of the prosecutrix under section 164 Cr.P.C., statement Ex.DA, statement of the prosecutrix while appearing as PW3 and the statement of the complainant while appearing as PW11 leave no manner of doubt that the prosecution has miserably failed to prove its case against the accused."
This Court feels that the order passed by the trial Court is perfectly justified. It was rightly observed by the trial Court that respondent No.1 and the prosecutrix were in love with each other, she had eloped with the above accused of her own. Both got marriage and also filed an application in this Court to provide protection to them as they were apprehending danger from parents of the prosecutrix. After appraisal of evidence, the trial Court rightly came to a conclusion that it was not a case of abduction/ kidnapping as it was. The prosecutrix was found above the age of 16 years at the time of alleged occurrence. This Court feels that the order passed is perfectly justified.
Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in State of Punjab v. Hansa Singh, CRM A 939-MA of 2011(O&M) 7 2001(1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
Similarly, in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
In Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479, decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."
Similarly, in the case of State of Rajasthan v. Shera Ram alias CRM A 939-MA of 2011(O&M) 8 Vishnu Dutta, (2012) 1 SCC 602, the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction CRM A 939-MA of 2011(O&M) 9 and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Counsel for the applicant has failed to indicate any misreading of oral as well as documentary evidence on record by the trial Court. No case is made out for interference.
Dismissed.
(Jasbir Singh)
Judge
25.09.2012 (Rameshwar Singh Malik)
gk Judge